A roundup of important new legislation, regulations, government announcements and court cases that we covered in the Environmental Compliance Insider in 2012.

Federal

LAW OF THE YEAR

Environmental Assessments

In July, the Jobs, Growth and Long-term Prosperity Act, which created a new Canadian Environmental Assessment Act, 2012 (CEAA), took effect. The CEAA establishes a new federal environmental assessment regime to replace the existing one.

OTHER NOTABLE REGULATORY CHANGES

Environmental Offences

In June, changes to the Environmental Enforcement Act took effect. CEPA now recognizes different types of offences, with more serious offences subject to higher fines, and different types of offenders. In addition, the maximum fine amounts increased.

In Dec. 2011, the government amended the federal Environmental Emergency Regulations, which require certain companies to have effective environmental emergency (E2) plans in place.

Hazardous Substances

In Dec. 2011, the government announced the addition of 41 unique substances to the Environmental Emergency Regulations, including styrene, an explosive chemical used to make polystyrene plastic containers, and ammonium nitrate, a fertilizer. Facilities that handle these substances at or above regulated quantities must have E2 plans.

CASE OF THE YEAR

Federal Government’s Withdrawal from Kyoto Protocol Upheld

The federal government signed the Kyoto Protocol, an international agreement to reduce GHG emissions by 6% below 1990 levels, and enacted the Kyoto Protocol Implementation Act to ensure that it met that goal. But in Dec. 2011, Canada withdrew from the Protocol and repealed the related act. A lawsuit was filed against the government that claimed the withdrawal was illegal and violated democratic principle. The court dismissed the lawsuit. The government complied with the withdrawal process provided in the Protocol. Nothing in the act limited the government’s prerogative to do so. And the government didn’t have to consult the House of Commons before withdrawing [Turp v. Canada (Minister of Justice), [2012] F.C.J. No. 944, July 17, 2012].

SARA Protections of Critical Habitats Aren’t Discretionary

Several environmental groups challenged the position of the Minister of Fisheries and

Oceans on the application of the protections of the Species at Risk Act (SARA) to the critical habitat of two species of killer whales. The government argued that these habitats were already protected by the Fisheries Act and the Oceans Act. But a federal court ruled that SARA creates stricter protections for the critical habitat of aquatic species than these other federal laws. The federal Court of Appeal agreed, ruling that SARA creates strict, non-discretionary protections for the critical habitat of aquatic species and that the federal government can’t permit the destruction of such habitats [Canada (Fisheries and Oceans) v. David Suzuki Foundation, [2012] FCA 40 (CanLII), Feb. 9, 2012].

Government Engaged in ‘Good Faith’ Consultations with First Nation

A court ruled that the federal government had violated its duty to consult with the Ka’a’Gee Tu First Nation before deciding to approve an oil and gas project in the Northwest Territories. It ordered the parties to engage in meaningful consultation. The First Nation later sued, arguing that the government didn’t engage in “good faith” consultations. This time the court dismissed the case, ruling that the government had correctly identified the scope and extent of the required consultations, and acted reasonably and honourably during the consultations. The First Nation was permitted to make its case and had every opportunity to voice its concerns [Ka’A’Gee Tu First Nation v. Canada (Attorney General), [2012] FC 297 (CanLII), March 8, 2012].

US Company Fined $150,000 for Illegally Exporting Items into Canada

During a joint investigation by US and Canadian government agencies, undercover fishery officers bought abalone shell decorative inlays and shark skin billiard cue handle wraps—both products suspected of coming from endangered or protected species. The company they bought those items from also used African elephant ivory and other protected wildlife parts to make billiard tables and cue sticks, which it exported into Canada and other countries. The company pleaded guilty to violating the US Endangered Species Act in a US District Court. It was fined $150,000 (US) and ordered to pay over $13,000 in restitution [Atlas Fibre, Govt. News Release, April 16, 2012].

Premature Work on Lake Costs Company $90,000

A company applied to various government departments for approvals for the construction of an inland marina development on a lake. Fisheries and Oceans Canada concluded that the proposed works required an authorization and environmental assessment. But before the environmental assessment process was done, the company started work, excavating the lakebed and damaging spawning and rearing habitat for several species of fish. The company pleaded guilty to violating the Fisheries Act. The court ordered it to pay an $8,500 fine, $500 to the Alberta Conservation Association and $81,000 to the Environmental Damages Fund [R.J. Williscroft Contracting Ltd., Govt. News Release, Jan. 31, 2012].

Ice Rink Penalized $20,000 for Ammonia Discharge

An ice rink released liquid and gaseous anhydrous ammonia from a compressor in the arena’s refrigeration system. The arena pleaded guilty to failing to take reasonable emergency measures consistent with the protection of the environment and public safety to prevent an environmental emergency in violation of CEPA. The court fined it $2,000 and ordered it to pay $18,000 to the Environmental Damages Fund [1073612 Alberta Ltd, operating as Edmonton Ice Box, Govt. News Release, June 14, 2012].

Company, President & Director Fined $15,000 for Dumping Dead Fish

After getting a complaint, Environment Canada enforcement officers discovered about 90,000 kg of dead hagfish in the water and along the shore of a harbour. The company responsible for dumping the fish, its president and a director pleaded guilty to violating the disposal at sea regulations of the CEPA. The court ordered them to pay $15,000 to the Environmental Damages Fund [SNE Sea Products Inc., Yong Taek Kim and Man Hwa Lee, Govt. News Release, May 30, 2012].

Illegal Alteration of Creek Costs Men $15,500

At the direction of three men, another man used heavy machinery to infill a creek with rock at its outflow into a bay, creating a barrier that prevented migrating rainbow trout from reaching critical spawning habitat upstream. Two of the men pleaded guilty to violating the Fisheries Act by the harmful alteration, disruption or destruction of fish habitat. The court ordered them to pay $10,000 and $5,500 to the North Simcoe Private Land Stewardship Network [Jason Kindree and Robert Smith, Govt. News Release, Oct. 11, 2011].